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Argument preview: Faith, teaching, and the Constitution

At 10 a.m. Wednesday, the Supreme Court will hold one hour of oral argument on a major test case on anti-discrimination laws and how far they may go to protect parochial school teachers from workplace bias. The case is Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, et al. (docket 10-553).  Arguing for the school and its church sponsor, with 30 minutes of time, will be Douglas Laycock of Charlottesville, Va., a law professor at the University of Virginia.  Representing the EEOC, with 20 minutes, will be Leondra R. Kruger, assistant to the U.S. Solicitor General.  Former teacher Cheryl Perich will be represented, in a 10-minute segment, by Walter Dellinger of the Washington, D.C., office of O’Melveny & Myers.  [Disclosure:  Goldstein & Russell filed an amicus brief in support of the respondent in this case, but the author of this post operates independently of the law firm.]


As long ago as 1972, the federal appeals courts accepted the idea that the Constitution’s religion clauses, in the First Amendment, protected religious organizations’ right to make their own decisions about hiring or firing their clergy, without limitations from laws against discrimination in employment.  The Supreme Court chose not to review the first of those decisions, and it has never ruled explicitly that there was such an exception in the Constitution.  Even so, all 12 federal appeals courts with the authority to hear such cases, and ten state supreme courts, now agree that the exception does exist, and that it at least applies to pastors, priests, and rabbis — those who obviously pursue religious vocations, ministering to the followers of their faiths.  Thus, this is called the “ministerial exception.”  But the agreement largely ends at what might be called the professional pastoral level.  There is widespread disagreement on how deep into the payroll and staff of a religious institution the exception applies.  That disagreement is what the Supreme Court is about to confront.

A number of federal civil rights laws do include an explicit religious exemption.  But, for many religious organizations, those exemptions do not go far enough: they argue that full protection is available to them only if it is grounded in the Constitution, and only if it is broad in scope; some even argue that it must be categorical: a flat ban on enforcement of anti-bias laws for staffing decisions.  At its furthest, this argument is based on the premise that, within some religious institutions (such as parochial schools), every member of the staff is carrying on the religious mission, and that all duties are infused with an expression of faith.

In the test case now before the Justices, the argument is made that who is a “minister” entitled to the exception cannot be determined in a “mechanistic” way, “adding up minutes of the day in columns labeled ‘secular’ and ‘religious,’ and comparing the totals….Counting minutes does not measure the importance of an individual’s religious functions.”   The ultimate constitutional necessity, in that view, is to have an exception that is broad enough to ensure that it is the church, or synagogue, or mosque that makes the decision about who does the ministering, and how they do it, and not a government enforcement agency looking in from the outside. An exception of that breadth is energetically contested by the federal government’s main workplace discrimination agency, the EEOC.

The core question before the Justices, in responding to the broad argument for an exception, is how to define the scope of duties of parochial school teachers like Cheryl Perich.   If the decision is that Ms. Perich was a minister, anti-bias laws cannot shield her in the workplace; if she was not, she is then like any other worker, protected against discrimination on the job.   In her case, the claim is that she was discriminated against because of her physical health problems and her insistence on her legal rights — in short, she was allegedly the victim of retaliation, in violation of the federal Americans with Disabilities Act.

In July 1999, she was hired to teach for a Lutheran organization, Hosanna-Tabor Evangelical Lutheran Church, in a kindergarten through eighth grade school that the church operated in Redford, Mich.  (The school has since closed because of financial problems.)  Its sponsors described the school as offering a “Christ-centered education based on biblical principles.”  That school had two categories of teachers: those who taught under contract, in the same way that public school teachers do, and those who were deemed to have been “called,” in a religious sense, to teach at the school.   A teacher who has completed a specific training course at a Lutheran college is deemed to be a “called” teacher, and is designated as a “commissioned minister.”  That is the category at issue before the Supreme Court.

Ms. Perich joined the small faculty of the Redford school as a contract teacher, to teach kindergarten.  The next year, she completed the required religious studies and became a “called” teacher, but with no change in her teaching duties.  After three years leading kindergarten classes, she moved into teaching third and fourth grades.   Using secular textbooks, she taught math, language arts, social studies, science, gym, art and music.  Later in court, she would say that she could remember only two occasions in which she introduced any religious ideas into teaching those subjects.  However, she did teach a 30-minute religious class four days a week, and attended chapel with her class once a week for 30 minutes.  She led her class in prayer three times a day, for five or six minutes each.  Twice a year, she took her turn, with all teachers, contract and “called,” in leading chapel services.  In her final year at the school, the class under her leadership engaged each day in a brief devotional activity.

Her legal case had its origin in June 2004, before the opening of the next school term.  She suddenly became ill during a sports outing, and was hospitalized.   She was ultimately diagnosed with narcolepsy.  The symptoms of that disorder can include sudden and deep sleeps from which the patient could not be awakened easily.  While Ms. Perich gave several dates for returning to work, each passed without her doing so. The school later insisted that it tried for a semester to save her job, but then decided it had to hire a replacement for the ensuing semester.

With no definite resolution of her medical situation, school officials in January 2005 decided to ask her to give up her “call,” and resign.  Such a release is itself considered a religious act, with each side agreeing to the “peaceful” rescission of the call.  Ms. Perich refused, and obtained a note from her doctor saying she could return to teaching in February.   The school told her that there was no place for her, since the hiring of a replacement teacher.   The school officials also insisted that they remained concerned about her physical health.  She showed up at school on the day the doctor had designated for her return, but was turned away.  She threatened to sue, and officials warned her that that would violate the church’s policy that conflicts within the staff be resolved internally.   Her “call” was shortly rescinded by the school, accusing her of insubordination and disruptive behavior by damaging the relationship with the school.   Ms. Perich took her case to the EEOC, which sued the school under the ADA, charging retaliation for her assertion of her rights under that Act.  She joined in the case, making her own claim of retaliation under the Act.   The legal claims sought her reinstatement as a “commissioned minister,” back pay, damage payments, and a court order for the school to change its policies.

With both sides seeking a summary ruling in their favor, a District Court judge ruled for the school, concluding that the school was protected from the lawsuit by the “ministerial exception.”   The judge found that the school had named her a “commissioned minister” and regarded her publicly as such, and declared that the court could not rule upon Ms. Perich’s claim under ADA without exploring religious doctrine in violation of the First Amendment.   The Sixth Circuit Court reversed that ruling, and concluded that the ADA did apply to the cancellation of Ms. Perich’s “call” and thus her employment. It ruled that the “ministerial exception” did not apply to her position, since she had spent the majority of her day teaching secular subjects using secular textbooks.  It remarked that all teachers at the school, lay and “called” alike, were assigned the same duties, and that was true even if a teacher was not a Lutheran.  A broad exemption, it said, would have the effect of removing protection of all of the school’s employees from the ADA and other anti-discrimination laws.  It ordered the District Court to proceed to judge the claim by her and the EEOC that her dismissal was a result of retaliation in response to her threat to sue outside the school’s conflict-resolution system.

Petition for certiorari

The Michigan church’s petition to the Supreme Court was one of two on the same issue that the Justices considered several times at private Conferences last February or March (the other petition, still pending, is Weishuhn v. Catholic Diocese of Lansing, 10-760) before choosing to grant the case involving Ms. Perich.  In her case, as noted, the “ministerial exception” had been found in the lower court not to apply.  In the case of another Michigan parochial teacher, Madeline Weishuhn, she was ruled to be a  minister and thus not protected by anti-bias law.

It may not have been the decisive factor, but the Lutheran church petition had been filed by one of the country’s leading experts on church-state law, the University of Virginia’s Douglas Laycock.   His petition for the Redford congregation raised the sole issue of the scope of the “ministerial exception” — whether it applied “to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.”

The petition was heavily tilted toward the argument that the lower courts, while agreeing that there is such an exception under the First Amendment, were in sharp conflict over “what legal standard controls the boundaries” of that exception, and that conflict focused specifically over the “primary duties” test that had been used by the Sixth Circuit Court.  Like the Sixth Circuit, the petition said, the Third, Sixth, and D.C. Circuits have adopted that test, going back to the first such ruling in 1985.  Under that approach, it added, the exception applies to an employee of a religious organization if his or her primary duties “consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.”

As that approach has been applied in specific cases, the petition said, it has boiled down to a question of whether the employee “is important to the spiritual and pastoral mission of the church.”

Four other Circuit Courts (the Second, Fifth, Seventh, and Ninth) have found that formulation too rigid, according to the petition, and take into account all of an  employee’s duties, not just the primary ones, and seek more diligently to stay out of entanglements in religious questions.  Finally, four others (the First, Eighth, Tenth, and Eleventh) apply the exception case by case, without embracing a particular standard or test, the petition said.

That appeal was supported by an array of religious organizations as amici, calling for a “robust” exception, and sharply criticizing the “primary duties” test.

The EEOC urged the Court not to hear the case, arguing that the church had not preserved its challenge to the “primary duties” test.  While conceding that there was “some variations” in how lower courts spelled out the test they were using, it asserted that there was no real conflict, and that some courts had in fact backed off of prior rulings that might have shown conflicts.   Most significantly, the Commission said, every appeals court decision has found the exception did not apply to a “teacher of primarily secular subjects at religious schools.”   The church, it asserted, had not shown that the case would have come out any differently in any other Circuit Court.   Ms. Perich’s lawyers, like the EEOC’s counsel, contended that any challenge to the “primary duties” standard came too late, and that there actually was no conflict, since other rulings cited by the church in its petition involved “practicing ministers,” not a teacher like her.

The Court granted the church’s petition on March 28.

Merits briefs

The Redford church’s brief on the merits sweeps somewhat more broadly than its initial petition, seeking to spread the foundation of the “ministerial exception” to the two principal religion clauses of the First Amendment — the Free Exercise and Establishment provisions — as well as to the more open-ended “freedom of religious association” — with each providing an independent foundation.  The Free Exercise component, the church argued, allows religious organizations to choose those that will perform “important” religious functions. It added that the Establishment Clause bars the government from choosing “ministers” and thus — importantly — prevents courts from ordering reinstatement of ministers; almost any disciplinary action within a congregation is based on religious reasons.  Finally, it said, the associational guarantee is designed to translate the control over leaders into control of the religious message that the organization seeks to propagate.

In an attempt to assure the Court that it was not seeking too sweeping an exemption, the Michigan church asserted that its formulation would only apply to those employees “who perform functions important to the employer’s religious mission” and to cases that would end in a mandate to reinstate a minister or to pay “the financial equivalent in back pay and front pay,” or would require a court “to decide religious questions.”

The brief relied very heavily upon a string of Supreme Court precedents on the right of religious institutions to pick their spiritual leaders.

As to Ms. Perich herself, the brief argued that, in her position, she served important functions in spreading the congregation’s religious message, by specific duties as well as under a general obligation to “integrate faith” into her secular classes.  She held a formal status as “an ecclesiastic officer,” it added, and she filed her lawsuit with the intention of getting her job back even though she breached the rules of the church — a breach that courts could analyze only by deciding for themselves how the rules she allegedly violated are to be interpreted.   “Allowing her claim to go forward,” the brief summed up, “would leave the church unable to control who teaches the faith to the next generation.”

The EEOC brief on the merits sought to persuade the Justices that the Redford church was hardly being modest in its constitutional aspirations.  What it was really seeking, the Commission argued, was a “categorical” exemption that would amount to “an overly broad prophylactic rule.”  Put into practice, the agency said, such a standard “would crucially undermine the protections of the ADA and a wide variety of other generally applicable laws.”  It added: “The logic of [the church’s] position…could easily be invoked as a justification for violating generally applicable laws forbidding retaliation against witnesses in civil or criminal proceedings…No provision of the Constitution demands that result.”

Repeated references in the government brief to “generally applicable laws” were designed to make the most of the Supreme Court’s 1990 ruling in Employment Division v. Smith, declaring quite broadly that religious organizations are not entitled to an exemption from neutrally and generally applicable statutes.   The ADA is just such a law, the Commission said, and the Lutheran church is not allowed under it — any more than another, non-religious group would be — to retaliate against a worker who asserted her rights under that statute.

The EEOC offered a fallback argument, in case the Court should feel inclined to adopt a categorical rule instead of what EEOC clearly favored: case-by-case adjudication, focusing on the worker’s complaint, how the religious organization defends against that claim, and what remedies might be fashioned in order to avoid the “pitfall” of entanglement in religious matters.  If there is to be a categorical mandate, the brief said, it should provide an exception only to those employees “who perform exclusively religious functions and whose claims concern their entitlement to occupy or retain their ecclesiastical office.”  This, it insisted, would limit the enforcement of anti-bias laws to a small group of religious organization employees whose disputes “most likely turn” on “entangling subjective religious questions.”   Ms. Perich’s job, it asserted, would not fit into that category, because of the mixed nature of her teaching assignment.  In cases like hers, the religious organization’s interests could be protected, the EEOC said, by “careful trial management” and “appropriate sensitivity” to the entanglement risk.

Ms. Perich’s lawyers, in their separate merits brief, suggested that the Michigan church was asking the wrong question and proposing the wrong answer.  The issue in the case, it argued, is not whether the church is entitled to a categorical exemption not spelled out in the ADA, but whether the ADA’s ban on retaliation for workers who assert their rights as disabled persons is unconstitutional as applied to a worker who performed the kind of mixed functions that this teacher did.  A crucial factor in answering that question, the brief indicated, was that Ms. Perich worked at a “commercially operated school.”   The Constitution does not bar such an anti-retaliatory statute from working in that context, the brief contended.

If the Court were to embrace the church’s “sweeping immunity” claim, the former teacher’s brief said, that “would leave hundreds of thousands of teachers without the protection from discrimination and retaliation that Congress intended to afford them,” and, in fact, would go beyond the teaching staff, and reach administrators at religious schools and the workers at a social service organization that had ties to a religious organization.

The flow of amici filings in the case runs somewhat more strongly, by volume, among supporters of the Lutheran church.  As might be expected, that support is centered in an array of religious organizations, but that array runs well across the spectrum of faiths and denominations, from Catholics to Krishnas and Muslims to Mormons and Jews and Baptists, arguing fervently for religious autonomy and independence from government intrusion.  Those briefs offer a variation in the formulation of a “ministerial exception,” but they have a common core demand for respect for religious institution’s choice not only of the tenets of their dogmas, but of the means and manner of propagating that faith through “religious workers.”

On the side of Ms. Perich are advocacy groups strongly committed to separation of church and state, pleading for an exception as narrow as possible — one confined to insulate religious organizations from general anti-bias laws when an employment action is found to be religiously motivated.  If a disciplinary action affects a worker who performs some religious functions, those briefs argued, the issue is not the nature of their duties, but the reason the management actually had for acting against such a worker; an adverse workplace decision “unrelated to religion” should enjoy no exemption.  There is also significant support for Ms. Perich among civil rights and liberties advocacy groups.


Since the Court is not being asked to rule that the Constitution provides no “ministerial exception” — whatsoever — to anti-discrimination laws, this case comes down to whether such an exception should be categorical or nuanced.  The appeal of a bright-line rule, sweeping in scope, is of course that it would keep the government at a considerable distance from religious institutions and they would thus be far freer to manage their staffs to maximize the presentation of their doctrine.  That would come at considerable cost to employees of those institutions, leaving them largely outside the shelter of anti-discrimination law, in a variety of contexts.

But as the Court moved to pare down an exception, each increment downward would expand the potential for government oversight of the internal workings of religious organizations  — with the benefit, to be sure, of expanding workers’ legal protection, but with the parallel prospect of significant religious entanglement.

There are sturdy arguments in the briefs in this case for both of those competing propositions.  If the Court finds itself tilting somewhat toward deference to the federal government, because of its close relationship with the Solicitor General’s office, it very likely would move toward the more nuanced approach that EEOC is advocating.  The Court, if it leaned that way, very likely would feel compelled to provide some stern admonitions to trial judges about staying out of the religious thicket.  But it is not easy to imagine what standards would guide the case-by-case approach that the Commission prefers.

If the crucial issue is found to be whether an adverse workplace decision was religiously motivated or not, and that is one option suggested for case-by-case determination, one may be hard put to say just how a court probes the content of motivation without probing what a particular dogma dictates.  In this very case, the Redford church is, in fact, arguing that it removed Ms. Perish out of a motive to protect the religious doctrine that internal disputes are to be resolved internally.  Would a court have to judge how sincere that claim was?  What proof would the church be asked to provide that it was not retaliating because Ms. Perish stood on her legal rights, when that very stand was a breach of faith, as the church saw it?

If the focus turns toward the utility of the “primary duties” approach used by the Sixth Circuit in this case, the question arises whether that gives the government the authority to look at a religious institution worker’s job classification in order to see which activity falls on the sectarian side and which on secular, and the weight to give each side of that balance sheet.  It is far from obvious that a court can run such a calculation without probing what tasks contribute to the furthering of a religious mission.

It could be, of course, that the Court — faced with all of these doctrinal puzzles — would simply turn its closest attention to the facts in this particular case.  Without laying out a new doctrine under the religion clauses, perhaps it could simply conclude that, however the “exception” might be tested in other factual contexts, Ms. Perich did enough during her workweek in performing undeniably religious chores that she does, indeed, qualify as a soldier of the Cross.   Not satisfying jurisprudentially, perhaps, but a result that might command five votes.


Recommended Citation: Lyle Denniston, Argument preview: Faith, teaching, and the Constitution, SCOTUSblog (Sep. 30, 2011, 7:11 PM),